5 Disturbing Aspects of the DOJ White Paper on the President's License to Kill
The Justice Department white paper on "The Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or an Associated Force," noted earlier tonight by Mike Riggs, fills in the fine print of the license to kill claimed by President Obama in several ways, none of them reassuring. The main conclusion of the paper, which was obtained by NBC News, is that "it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa'ida or an associated force of al-Qa' ida without violating the Constitution or…federal statutes…under the following conditions: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force"—i.e., "necessity, distinction, proportionality, and humanity." Here are five points worth highlighting:
1. There may be other situations in which the president believes he has the authority to order the death of someone he perceives as an enemy. As the Justice Department repeatedly warns, "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances."
2. The determination of whether someone is in fact "a senior, operational leader of al-Qa'ida or an associated force" is made entirely within the executive branch, presumably by the same "informed, high-level official" who decides whether the target is an imminent threat.
3. The "imminent threat" determination is not really a distinct step in the process of authorizing summary execution by drone. "The condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future," the paper explains. For example, "where the al-Qa'ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member's involvement in al-Qa'ida's continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat." In other words, identifying someone as a current or past operational leader is pretty much the same as deciding he poses an imminent threat.
4. Although the requirement that capture be "infeasible" could be read as ruling out targeted killings within the United States or in friendly countries willing and able to assist in the apprehension of suspected terrorists, the paper identifies no geographic limit on lethal strikes against people deemed to be imminent threats. It explicitly rejects the notion that attacks should be limited to "the zone of active hostilities." (Hence the drone strikes in Pakistan and Yemen.) As for obtaining permission from the government of the country where the target is located, the paper says "a lethal operation in a foreign country would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted." In other words, firing missiles at a suspected terrorist is permissible under international law only if the host nation's government 1) agrees to allow the attack or 2) refuses to allow the attack.
5. Although permission from the host nation's government clearly is not required for a drone attack, the white paper says capture may be deemed "infeasible" if "the relevant country were to decline to consent to a capture operation." The president also may decide to kill rather than capture if he believes the latter would pose "undue risk to U.S. personnel." And lest you think that the determination of whether death by drone is justified would benefit from a second opinion, the white paper notes that "feasibility would be a highly fact-specific and potentially time-sensitive inquiry"—i.e., not the sort of thing anyone outside the executive branch should be second-guessing.
More generally, the white paper fleshes out the Obama administration's argument that U.S. citizens killed by drones are getting all the process that is appropriate in the circumstances; hence the Fifth Amendment, though implicated, is not violated. And since these targeted killings are lawful acts of self-defense, the Justice Department says, they do not violate the law against killing U.S. nationals in foreign countries or the executive order banning assassination. After all, "A lawful killing in self-defense is not an assassination." Duh.
The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.